On December 13, 2018, the Superintendence of Industry and Commerce ("SIC"), through Resolution 90093, ruled regarding the recognition of interested third parties in business integration processes. The rulings made through this resolution involved a change in the position that the SIC had adopted so far in this regard in business integration processes.
In 2016, the SIC adopted the position to recognize interested third parties in business integration processes and, consequently, to accept their participation as such. This, referring to the existence of a legal loophole on the recognition and participation of interested third parties in this type of process, a loophole that should had been resolved by article 19 of Law 1340/20091. The foregoing, pursuant to provisions of Article 8 of Law 153/1887 regarding the application of laws, when there is no law "exactly applicable to the disputed case". This means that, before Resolution 90093, those complying with the assumptions established in article 19 of Law 1340/20092, could be recognized as interested third parties and participate as such in business integration processes, even when said article refers exclusively to the investigation processes for restrictive competition practices.
However, through Resolution 90093, the SIC stated that it would not recognize interested third parties in business integration processes, based on the considerations explained below.
In the first place, for the SIC, Colombian law has established two different procedures related to competition protection: on the one hand, the ex-ante business integrations procedure; and on the other, the sanctionatory ex-post procedure, which is the investigation process for restrictive commercial practices. There are different procedural provisions on each of these procedures3, which were included in the law as a consequence of the differentiated nature of each.
For the particular case of the recognition and participation of interested third parties, the SIC considers that there is no legal loophole in this regard for business integration processes. On the contrary, it considers that the third party intervention was only provided as a procedural tool for the procedure of restrictive business practices, taking into account that, in business integration processes, another possibility of intervention for third parties was expressly provided.
The fact that the law did not provide for the recognition and participation of interested third parties in business integration processes is due, according to the SIC criteria, to the fact that during these processes, third parties can participate in general through the provision of information and, additionally, the SIC has the power to request information from the competitors of the parties involved in the process, as well as from regulation, control and surveillance entities.
In this sense, the SIC considers that the legislator had the express willingness to exclude the possibility for interested third parties to be recognized and participate as such in business integration processes, which translates into not granting to such third parties the power to request evidence and file an appeal during business integration processes. Therefore, through Resolution 90093/2018, the SIC stated: third parties are accepted, but interested third parties are not.
In this Resolution, however, the reason why the legislator was willing to exclude the possibility for third parties to request evidence and file an appeal in business integration processes, i.e., be recognized as interested third parties, is not analyzed. Certainly, this change in the SIC’s position is worthy of analysis for subsequent articles, with respect to the real reason why the legislator did not provide for the possibility of recognizing interested third parties in business integration processes.
- Law 1340/2009. “Whereby rules on competition protection are issued."
- Ibid. Assumptions consist in proving a direct and individual interest in investigations for restrictive business practices.
- While integration processes are regulated in Law 155/1959 (art.4), modified by Law 1340/2009 (articles 9-13), the restrictive practice process is regulated in Decree 2153/1992 (art.2), each with its own characteristics and singularities.
Law 153/1887, "whereby national codes are added and amended, Law 61/1886 and Law 57/1887".
Law 1340/2009, "whereby rules on competition protection are issued".
Resolution of the Superintendence of Industry and Commerce No. 6338 dated February 11, 2016.
Linares, Mariné. (2019). Doctrinal changes on business integrations and unfair competitiona. Referenced from: https://competenciayconsumo.com/2019/02/22/cambios-doctrinales-en-asuntos-de-integraciones-empresariales-y-competencia-desleal/